NJDOE Agrees To Adopt Rules For New Graduation Testing Requirements; Legal Issues With Validity Of New Testing Requirement Remain Open

New Jersey students, families and the Education Law Center have reached a settlement agreement with the New Jersey Department of Education, resolving a battle over requirements for New Jersey students to graduate this year. Under this agreement, students in the class of 2016 will have a variety of options to fulfill graduation testing requirements and some new protections for the appeals process.

Prior to the lawsuit, NJDOE attempted to impose testing requirements in a manner that — as the settlement agreement acknowledged — did not follow state law, which requires NJDOE to give the public prior notice and an opportunity to provide comment. After the lawsuit was filed, NJDOE proposed new regulations and is going through the process required by law. However, the current settlement was necessary because the process will not be complete before this year’s graduation dates.

The students and families in the lawsuit are represented by ELC, the ACLU of New Jersey and the Gibbons law firm pro bono.

“We filed this lawsuit because state education officials imposed a new and controversial testing regime for graduation without following the basic procedures for adopting new rules,” said David G. Sciarra, ELC Executive Director. “We have successfully redressed that legal violation since the state has now proposed rules for the new testing requirements, giving parents, educators, and advocates the opportunity to submit comments, concerns and objections.”

Under the NJDOE’s attempted policy, outlined in a 2014 memo (PDF) sent by New Jersey Education Commissioner David Hespe, students would have had to meet minimum scores on Partnership for Assessment of Readiness for College and Careers (PARCC) tests or other approved exams, such as the SAT or ACT, in order to graduate, or utilize a limited portfolio review process.

Under the agreement students who do not meet test-based graduation requirements will have greater protections and options in using a portfolio review process as an alternative pathway to graduation until the adoption of final regulations. In addition, if a school district determines that a student has not met the graduation testing requirement, including through the portfolio review process, that determination is immediately reviewed by the NJDOE. The settlement also sets time frames by which districts must inform students that a portfolio review is required, and requires NJDOE to make public important data on the process.

“The State Education Department placed students in an untenable situation by ignoring the law and imposing new graduation requirements by fiat, which it is not permitted to do,” said ACLU-NJ Legal Director Ed Barocas. “Through this settlement, we hope to remove some of the hurdles the Department placed in front of students, as the window of time before graduation rapidly closes.”

Although the settlement covers the class of 2016 and members of other graduating classes until the new regulations are adopted, the agreement does not address potential legal issues arising from the NJDOE’s proposed graduation rule changes currently under consideration. ELC and the ACLU-NJ have raised a number of concerns about the pending rules, but any legal challenge to those rules can only proceed after the State Board of Education has formally adopted the regulations.

“While there was no perfect solution available given the situation the DOE created, we are hopeful that no student who is entitled to graduate is foreclosed from reaching that goal. We will continue to defend every New Jersey student’s fundamental constitutional right to an education,” Barocas said.

The settlement makes significant procedural and substantive changes to the NJDOE’s portfolio review process, an alternative that can fulfill testing requirements for students who do not reach the minimum test scores required on PARCC or other tests.

The settlement sets forth the following terms for the portfolio review process:

NJDOE will notify districts that they must provide information about the portfolio process within five days of the settlement agreement’s execution to the parents of students who still need the portfolio review to graduate. According to the NJDOE’s own estimates, as of mid-April this year between 10,000 and 20,000 seniors still had not met the testing requirement.

The portfolio process will be available to all students, regardless of their participation in testing or their performance on assessments.

Districts — rather than the DOE — will determine whether a student has met graduation proficiency standards, and DOE will review appeals to verify portfolio completion and provide technical assistance to districts that request it.

Students can satisfy a portfolio review by submitting earlier graded classwork or completing tasks set by the district, as well as a combination of the two.

For students who are English language learners, the districts can administer and review portfolios in a student's native language.

Districts must provide students with staff assistance to complete the portfolio review process.

Districts can allow students awaiting final portfolio review who have met all other requirements to participate in graduation ceremonies.

The NJDOE will allow districts to accept and review class of 2016 members’ portfolios up to September 1, 2016.

If a district determines that a student has not satisfied the portfolio review, it must provide a written explanation, with notice that the materials will be sent to the NJDOE for an automatic review. That notice must also include information about the right of students to appeal the district’s decision to the Commissioner of Education.

Under the settlement, NJDOE must provide ELC with data, disaggregated by district and student subgroups, on how many students have successfully completed portfolio reviews and how many have not yet satisfied the graduation requirement. This information, provided at several intervals over the course of the year, will allow ELC to monitor the impact of the new graduation policies, particularly on at-risk groups of students.

The settlement acknowledges that the NJDOE failed to follow the Administrative Procedures Act — the law setting forth procedures government agencies must follow to enact new rules — by using memos and rules that were not duly adopted, to institute new policies. To implement new regulations, the law requires a public comment and review period, as well as formal codification. The NJDOE neglected to observe any of those requirements when it rolled out the new graduation standards in 2014.

In response to the filing of this lawsuit in September 2015, the NJDOE in January 2016 began the formal rulemaking process required to change its previous rules for graduation. The new rules have not been formally adopted, but on April 6 the State Board of Education approved publishing the rules for public comment.

Although NJDOE is now adopting regulations through the proper process, the ACLU-NJ and ELC have already submitted comments raising concerns regarding those proposed regulations. The organizations raised concerns specifically about the new regulations’ potential impact on at-risk students, English language learners, students with disabilities and students with other special needs.

As many as 10,000 students annually, including more than half of all ELL graduates, previously used an alternative assessment to satisfy graduation requirements that the NJDOE improperly stopped utilizing and that is not included in the proposed regulations. In addition, codifying the use of fee-based commercial tests such as the SAT and ACT as graduation requirements raises questions about equal access and alignment with state standards.

ELC and the ACLU-NJ will continue to monitor NJDOE’s compliance with the settlement and the progress of New Jersey seniors still trying to comply with the new requirements for graduation. Parents, students, and educators who have questions or concerns about the settlement and its implementation are encouraged to contact ELC.